120. The representative of the Philippines first wished to address the textual implications of the provision under discussion. There was a proposal on the floor of the Council to extend the period of five years. Whilst Article 64.3 said that consensus was required to extend this period, it also said that the Council was supposed to discuss the scope and modalities, the outcome of which also required consensus. He submitted that, if ever the Council continued discussing this issue, and it could not achieve a consensus on extension or a consensus on scope and modalities, there was no way in which Article XXIII:1(b) and (c) would apply under the TRIPS Agreement. That was his delegation's reading of the provision. He had hoped to hear from the proponents of the application of Article XXIII:1(b) and (c) to disputes under the TRIPS Agreement, what arguments they had for the intrinsic legitimacy of those provisions as such and in relation to the TRIPS Agreement. So far, he had only heard arguments that these provisions should apply because they were already there. He would have preferred some exercise in apologetics to establish its legitimacy. Some had said that non-violation nullification and impairment was applicable in the GATT in respect of reciprocal tariff concessions, but this did not take account of the fact that in the GATT, prior to the establishment of the WTO, no panel recommendation was binding without the consent of the party that was the subject of the complaint. That safeguard no longer existed in the WTO, because a panel or Appellate Body report was inevitably adopted. This made it imperative that the Council analyse the legitimacy of the liability of Members for non-violation and situation nullification and impairment. Whilst it was true that the WTO was a contractual organization, it also had to subscribe to the general principles of law and, as far as his delegation was aware, international law had not evolved in such a way that states or Members could be penalized for acts or omissions for which they were not otherwise responsible. In international law, the rule still was that one was liable for the consequences of breaches of contract or acts which constituted a tort. The concept of non-violation and situation complaints went further than this. It sought to render a Member liable for situations in which it had not violated any agreement and even for situations over which it had no control. When Members had entered into the WTO Agreement, they thought they had agreed to comply with certain obligations and to be responsible for compliance and to accept the consequences of any violation. They had never thought that, by entering into the WTO Agreement, they had placed themselves in the position of "insurers" of benefits vis à vis the nationals of other Members. This was essentially what non-violation and situation complaints sought to establish. He believed that Members had not intended and did not intend to assume such an obligation. In the discussions on electronic commerce, it had been said that one did not know the implications of technology for intellectual property. The advanced technology which disseminated information today was the same which subverted intellectual property over which Member governments had no control. In such a situation, he saw no wisdom or equity in establishing that Members should also be responsible in situations when intellectual property rights were subverted by technology over which Members, particularly developing country Members, had no control. He proposed that the Council attempt to discuss the scope and modalities and that, if a consensus could not be achieved, Article XXIII:1(b) and (c) would never be applicable to disputes under the TRIPS Agreement.
